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WashingtonLawHelp.orgWashington LawHelp

Immigration Status and Court Hearings in Washington State

Authored By: Northwest Justice Project
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Questions and answers about when and how the court can ask about your immigration status. #8110EN

Contents

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Should I read this?

Read this to learn about

  • Washington State’s Courts Open to All Act and

  • Washington Supreme Court’s rules (GR 38 and RPC 4.4)

The law and rules are meant to keep people from being arrested by immigration agents (ICE or Border Patrol) when they come to a courthouse. They are also meant to protect people from having their immigration status shared or disclosed in connection with a court proceeding.  Federal immigration agents who continue to arrest people who come to court will be breaking these state laws and rules.

*If you are concerned about being arrested by immigration agents when you go to court, talk with a lawyer.  See below for information about how to talk with a lawyer.

 

I have to go to court. Can ICE pick me up if I show up at the courthouse?

ICE should only be able to detain you if they have an arrest warrant or a court order signed by a judge. Talk to a lawyer if you have concerns. If you want someone to accompany you to court, call the Washington Immigrant Solidarity Network at 1-844-724-3737.

 

Can ICE pick me up on my way to the courthouse or leaving the courthouse?

ICE should not be able to pick you up within one mile of the courthouse. Talk to a lawyer if you have concerns. If you want someone to accompany you to court, call the Washington Immigrant Solidarity Network at 1-844-724-3737.

 

I am a victim or a witness in a criminal trial. Can I be asked about my immigration status during the trial?

The person charged with the crime (the defendant) will have a defense attorney (a “public defender” in many cases). If the defendant believes you may be bringing criminal charges or testifying as a witness in order to help with an application to get legal immigration documents (such as a U visa), they can ask the judge to allow the defendant’s lawyer to ask you questions about this at trial. These questions may include questions about your immigration status. The judge will decide if the defense attorney can ask you these questions at trial.

As a victim or witness, you might also be deposed (asked questions under oath) before a trial takes place.  If you have questions about this, ask the prosecutor, or if there is one in your county, the victim coordinator or witness coordinator.

 

What if I am the defendant in a criminal case?

The judge can only allow evidence of your immigration status if it is needed to prove part of the crime (an “element” of the crime) you are being charged with, or if it is needed to prove your defense to the charge. However, it is very important that you tell your defense attorney or public defender that you are not a US citizen. They must keep this information confidential.  Your attorney needs to know this information to protect you and defend your rights, and to try to work out the criminal charges so you do not get deported.

 

I am a party in a family or other civil (non-criminal) court case. Can they ask about my immigration status?

A lawyer for another party can only ask about this if it is needed to prove their case.

 

How does a judge decide whether to allow evidence about my immigration status?

The party who wants to ask about your immigration status must file a confidential written request (motion) asking the judge permission to do so. The judge will hold a private hearing in the judge’s office, not in the courtroom, before making a decision.

 

I aminvolved in a court case. Can the other side’s lawyer report me to ICE?

Lawyers can only practice law if they have been given a license by the Washington State Bar Association. If a lawyer breaks (violates) rules for lawyers (called the Rules of Professional Conduct), the Bar Association can take away their license or give them other penalties.

If a lawyer reports someone involved in a legal case to ICE, they have violated the rules for lawyers. If you are worried that a lawyer in the case might report you to ICE, ask to talk to a lawyer on your side of the case.

 

How can I talk to a lawyer about this?

This depends on whether you have been charged with a crime.

    • If you have been charged with a crime, you might qualify for a free lawyer (a public defender).

  • If you are charged with a crime and you have a low income, you have a right to get a lawyer free of charge, no matter your immigration status.  At or before your first court appearance, you will be asked if you want a free lawyer (public defender).  You will have to fill out some forms so the court can determine if your income is low enough to qualify you for a public defender.  If you qualify, the court will appoint a public defender to represent you in your criminal case. The court will not ask you about your citizenship or immigration status when they make this determination, and you should not volunteer this information to the court. However, you should tell your public defender if you are not a US citizen.

  • If you are ever arrested, you should tell the law enforcement officer, before they start asking you any questions, that you want to talk to a lawyer.  Free court-appointed lawyers are always on-call for this purpose.

    • If you have not been charged with a crime, and you are going to court for a civil (non-criminal) matter, or because you are a victim or a witness in a criminal matter, you may be able to get legal advice in one of these ways:

      • If you are a victim or witness in a criminal case, contact the Prosecutor’s office. You may be referred to someone called a “victim or witness coordinator” who works in the Prosecutor’s office. These coordinators are not usually lawyers.  Ask to talk to a lawyer in the Prosecutor’s office to discuss your concerns.

      • If you are involved in a civil (non-criminal) case, and you have a low income, you may qualify to talk to a lawyer for free through the Northwest Justice Project’s CLEAR line, at 1-888-201-1014.  Call between 9:15 AM – 12:30 PM to ask for help.

What’s new in 2021?

In April 2021, the U.S. Secretary of Homeland Security directed ICE and Border Patrol in a memo to limit their actions in or near courthouses. This is also meant to keep people from being arrested by immigration agents when they come to a courthouse.
According to this memo, immigration agents may now only take civil immigration enforcement action in or near a courthouse in a few situations:

  1. It involves a national security matter. OR

  2. There is an imminent risk of death, violence, or physical harm to anyone.  OR

  3. It involves hot pursuit of someone who poses a threat to public safety. OR

  4. There is an imminent risk of destruction of evidence important to a criminal case.

Civil immigration enforcement is permitted against public safety threats in the absence of hot pursuit where needed and with approval beforehand.

 

Where can I find the rules and laws about this?

Washington Court General Rule 38 and Open Access to Courts Act (House Bill 2567) are about ICE and Border Patrol not being able to pick you up when you are at a courthouse without a judicial warrant or lawful court order.

Washington Court Rule of Professional Conduct 4.4   is about lawyers not reporting people to ICE and Border Patrol, or using questions about immigration status to harass, intimidate, or interfere with their legal rights.

Rule of Evidence 413 is about when information about a person’s immigration status can be allowed in court trials. 

General Rule 15 is about sealing court records.

Memo to ICE and CBP is about Homeland Security’s direction to ICE and Border Patrol to limit their actions at courthouses

 

Get Legal Help

Visit Northwest Justice Project to find out how to get legal help. 

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Last Review and Update: Jul 08, 2021